Marriage and Parenthood for Same-Sex Couples: Which Comes First Matters

Many important things happened on Election Day. Among them, Washington State voters (as well as those in Maine and Maryland) approved measures giving same-sex couples access to marriage.

This is an important first–all the other states that allow same-sex couples to marry got there by court action or by legislation. Further, those opposed to access to marriage had won something like 30 straight state-wide referenda on the topic. (Most of those were adoptions of statutes or constitutional amendments restricting access to marriage.) Somehow winning access via a vote of the people–the purest measure of majority sentiment–seems noteworthy.

It’s clear that the path to marriage in these states–as in all the others–runs through parenthood. What I mean is that all the states that have granted marriage access for same-sex couples have recognized same-sex couples as parents for a long time. And the recognition of same-sex couples as parents became critical in the public discourse around marriage.

The logic (as I’ve commented before) is simple. It’s widely agreed that having married parents is good for children. (To be clear, I find the uncritical assumption problematic, but still, I have to conceed it is widely shared.) Lesbian and gay couples can be parents. Their children would benefit from having married parents, too. Therefore, it only seems sensible to allow lesbian and gay parents (and therefore all lesbian and gay couples) to marry.

From a political point of view, the power of this argument is clear. Parenthood for lesbian and gay couples is well-established. The benefits of marriage for parents is an article of faith for those with conservative views. Where, then, do you grab hold and say same sex couples shouldn’t be allowed to marry? (I sometimes wonder if conservatives regret not having put up more of a fight about parenthood issues.)

The centrality of parenthood and children was quite clear during the just-completed campaign here in Washington and, while I didn’t see the ads in the other states, I’ll bet it was on display there, too. Marriage is all about strengthening families.

At the same time, marriage legislation is also being considered in France. What’s striking is that there the order is reversed. By gaining access to marriage, lesbian and gay couples will gain access to adoption. This is important because it turns out the provisions allowing access to adoption are quite controversial. Objections to lesbians and gay parentage lie at the heart of objections to marriage. Further, proposed compromises to limit support for parentage (via ART) are offered to ensure passage of marriage legislation.

It’s just food for thought. Partly because of the nature of our courts (I’m thinking here of common-law courts, for those who know what that means) parenthood for lesbians and gay men came slowly, almost invisibly over a period of years if not decades. This meant that it was deeply embedded before marriage really heated up as an issue. And I think that turns out to have mattered a great deal.

49 responses to “Marriage and Parenthood for Same-Sex Couples: Which Comes First Matters”

Well good. I’m glad they got the right to marry. Now we should take away everyone’s right to marital presumption. Straight couples never should have been allowed to use being married as a means to being thought of as parents and neither should gays and lesbians. Nobody should have that loophole to pretend to be a parent. I know you’ll take issue with that. But what allowing gays and lesbians to marry does is allows their children to have legal step parents. Which is as it should be it was not fair they were not allowed to become step parents and now they are. I

Actually, I would expect that it will reinforce the marital presumption and further detach it from any tie to genetics.

Remember that the presumption is about legal parenthood. When one party to a married couple gives birth to a child, the most common desire is undoubtedly that both people will be raising the child together. (I’m well aware that this isn’t always the case, but it usually is.) The marital presumption–the presumption that the non-child-bearing spouse is also a legal parent–facitlitates that. This is why we have it—not because we are making predictions about genetics.

I don’t see why the move towards allowing marriage for same-sex couples would push in the opposite direction.

I agree, which is why i opposed same sex marriage. I wish now that I’d see the sperm donor law emended in New York to exclude so-called sperm donors that are known and identifiable to the recipients; but it aint going to be happening.
The law I’m referring to is the one that names a married woman’s husband as the child’s father (with his consent only). Up to now my understanding is that lesbian couples who wished to exclude their “sperm donor” from claiming paternity, could not do so because they were not married. Now that has gone out the door, these fathers will be left out in the cold, their paternity taken from them.
This was not an issue with heterosexual couples because heterosexual couples do not ask the guy next door to please father a child for them; a sperm donor is almost invariably anonymous.
Now that New York has accepted gay marriage, it is ESSENTIAL for them to emend the sperm donor law to limit it only to anonymous men. Notice that gay men will disprorportianately affected by this law, since gay men can not conceive by sexual intercourse.
But this aint going to happen.

New York is an interesting state to think about, but i want to acknowledge at the outset that I may not know quite enough law to be sure of what I think I want to say.

If married lesbian couples can defeat the claim of a known donor in NY it might be because NY has a law that says that when a man donates sperm for the insemination of a married woman not his wife, the man who donates is not a legal parent. This isn’t exactly the marital presumption–it’s a statute that works to assist the marital presumption which goes further and states that the spouse of the woman who gives birth is the legal parent. Would love to know if this is actually how NY operates. This is only different in small ways from what you say, but now I’m curious.

I find more to think about with your larger point. I think that for heterosexual couples there are two circumstances where the marital presumption might be used to override genetic claims. First, there are instances where people doing ART use third-party sperm. Second, there are intances where the wife has had an affair. Do we have any idea which is more prevelant?

it is probably true that for those using ART, straight couples are more likely to use anonymous donors than are lesbian couples. Indeed, I think what statistics we have seen bear this out. But what should we think about that? Surely many people here think the unknown donor route is more harmful to the child and so it would make sense to encourage the use of known donors. (i know people might prefer to ban all use of donor sperm, but let’s assume that is off the table for the moment.) And that means protecting the rights of those who use known donors so that this option remains a viable choice. I think your suggestion runs counter to this.

I’m not exactly sure why you are particularly worried about the known donors who provide sperm to lesbian couples (as opposed to the unknown donors who provide sperm to both lesbian and straight couples.) Is it because you think they are typically mislead about the role they will play in the child’s life? Or for some other reason?

there are many people who might not approve sperm donation, but when push comes to shove, they’d rather choose the mother’s husband as the parent than some anonymous guy somehwere that no one has any idea who he is. Indeed, I would find it extremely illogical to choose the anonymous guy whom no one has ever heard of, and not in the child’s best interest.
I am aware that choosing the husband enourages sperm donation for married women and I agree that is problematic but I don’t think punishing the parent is a good enough reason to sacrifice the kids’ best interest.

The next door neighbor, however, is not anonymous and therefore there is no reason to deny his parenthood. He is willing and able to be part of the child’s life, and his relationship to the child is exactly the same as all heterosexual dad’s, no matter how the conception took place; so why should he and the child be treated differently?
I see no reason to displace him in place of the mother’s spouse; as I stated above; a partner is not a parent.

the sperm donor law is similar to that in many states and that is; a married woman’s husband, if both he and she consent, is a the father to the woman’s child born by donor sperm.
What I am saying is that “sperm donor” must be defined to apply to anonymous men only.
I have not heard of any cases yet in New York like this, since same sex marriage was legalized but I’m sure one wiill come up sooner or later.
Whether or not the father was misled is not to the point, if he changed his mind, as the father he is perfectly entitled to, same as any father who conceived by heterosexual intercourse. In fact many men grow into the idea of fatherhood slowly.

Why does the law allow some men with offspring off the hook for taking care of them? Why do we label some men donors? Isn’t that unfair to their offspring? I mean the government will go hunt other unknown fathers down for their kids in order that they meet their responsibilities does not seem terribly fair that we would go out of our way to exempt some parents from responsibility for their offspring. Why should we let the anonymous ones off the hook? Its a crime for other fathers to hide and avoid responsibility.

I could just as well as why men should be “on the hook” for the offspring. Or I could ask the most general question–under what circumstances should an adult be “on the hook” for a child.

There’s a preliminary question: Can I assume by “on the hook” you mean liable for child support? Or do you mean something more? Maybe there are two questions here: Under what circumstances should an adult be responsible for child support AND under what circumstances should an adult have the major rights/responsibilities of legal parenthood?

I’m not necessarily against saying that when men engage in conduct that can result in conception of a child (I’m thinking here intercourse) they can be held liable for the cost of raising that child UNLESS they are particpating in a plan in which it is agreed in advance that others will shoulder that responsiblity. I could justify this on the grounds that we are all generally responsible for the consquences or our acts and one consequence of intercourse can be conception. Sperm donors could be placed in a different category. What I mean is that I think you can justify treating men who impregnate via sex differently from men who donate sperm when it comes to questions of child support.

But this does not determine the outcome of the second question above–the one about who gets rights and responsibilities of parenthood. I don’t see why engaging in sex should get you any more/less rights and responsiblities from providing donor sperm.

It is absolutely unconscionable to demand a total stranger to support a random child. If you think that a man is of no relation to the child than you have no business demanding anything of him.
Maintenance of one’s child is NOT a consequence of having sex. With the exception of some fundamentalist religious streams (the same ones who believe that women shouldn’t have abortions because they should accept the consequences of sex, we in our society accept the idea of having plain old sex just for the fun of it.
In any case, no child is a “consequence”. Liability law doesn’t apply to a person’s existence cuz no person is a liability. If you caused an injury, well that’s a liability.
Maintenance of ones child is a function of a very specific type of relationship. No relationship, no maintenance. You can not have it both ways unless you are extremely anti men. This goes for men and well as for women.

I don’t think I proposed having people support random children. (Though I am inclined to think that we all, as a society, ought to support all children, at least to some degree, with things like health care and education, etc. But you’re not reacting to that, right?)

I think what I am proposing is a specific instance of a relatively well-accepted legal rule–we are responsible for the natural and foreseeable consequences of our acts. If I fail to maintain my car’s brakes and as a result there is a bad accident, I may be responsible for the harm caused–even if someone else is driving. If I walk into a store and push something off the shelf–I may have to pay for it, even if it was an accident. This is one of those really basic ideas that I think is uncontroversial as a general matter.

I just want to apply it to a specific instance. If you participate in conduct that leads to the birth of a child, then you are generally responsible for the result of your conduct–the cost of raising the child. (Unless, of course, you do so in the special setting where it is specifically and formally contemplated that you will not be liable for the cost of the child–that’s the sperm donor.)

This isn’t because I see children as a liablity, but there are in fact costs associated with them and if we’re looking for people to help bear the costs, why not those whose actions created the child? It seems to me there is a defensible argument for assigning the costs there without any regard to whether the payor is then entitled to some social relationship with the child.

I don’t mean to suggest that this is the rationale in place, though.

I don’t actually see this as terribly anti-male. It might encourage men to take a more active role in birth control, but that’s not a bad thing in my book.

no one’s existence should be likened to a car crash.
when we talk about sperm donors, we talk about the “gift of life”. all of a sudden, it’s not a gift anymore but some horrible calamity that someone must pay for?
besides for which the primary decision on whether to have a child or not is made by women, not men.
This is a point often made, quite logically, by people who wish to absolve men from child support . I usually explain to them that this is absolutely irrelevant because child support is not a liability issue it is a parental relationship issue. but if you are going to adapt a liability model, which in my opinion is entirely unethical, you really have no case.

I’m more or less followoing until I get to “his relationship to the child is exactly the same as all heterosexual dad’s”. I do not agree. His genetic relationship is like most heterosexual dad’s–which is to say he is a genetic father. But his social/psychological relationship is not anything like most heterosexual dad’s.

I think he can have some identified role in the child’s life and give the child access to all those genetic connections people talk about here without being recognized as a legal parent. Suppose the reality of the child’s life is that she/he lives in house A with mother and her spouse/partner and that household operates like most other two-parent households in terms of decision making, responsiblity, etc. Then you have Donor somewhere else and he has a relationship with the child and is known as donor, but does not take the responsiblity of parenthood. To recognize mother and donor as legal parents and to not recognize spouse/partner seems to me to just create the potential for disaster. The child’s relationship to spouse/partner must be protected–which is what legal parenthood is all about.

It makes no more sense to me to vest legal parenthood in a neighbor than it does in a stranger. Either way, the person isn’t actually doing the job–someone else is–and assigning the legal rights without regard to social reality will lead us into trouble.

Julie, yes his social relationship is different, but only because you and likeminded folks are making it so! To deny him parental status and then justify excluding him because hey he’s not playing the role, is rather hypocritical wouldn’t you say?
As for the complexity of step parent families, no one ever said that was easy. Navigating these relationships are never simple for anyone. But, having a parent who you aren’t allowed to call parent, isn’t any simpler, I’d say it convolutes things even more. Having one parent who is so terrified of being overshadowed by a genetically connected parent does’t make these simpler or less baggageful.

My opinion is, if you can’t deal with this situation, then don’t get into it in the first place. Don’t have children with someone you don’t want to be your child’s parent. That should be elementary.
And if it means using an anonymous donor, then so be it. If you can’t handle the situation it might be the lesser of two evils for you and your kid. Just choose a donor whose identity will be released in adulthood, that’s all.

Okay–so we agree that the social relationship is different. And then I think we diverge–I want to try to summarize the divergence–and then maybe move it to a post so we don’t get to tangled in the comments here?

It sounds to me like you would say that is a bad thing that the social relationship is different and that the law should not facilitate having this different social relationship? Part of that is saying that his social relationship with the child should be the same. Are you also saying more–that it would be the same were it not for the propogation of the view that genetics aren’t determinative of parenthood? Is the suggestion that the natural state of affairs that he would have the same social relationship?

I would disagree on the first part of this–that it is a bad thing that the social relationship is different. I do not see why this is so. In fact, though the arrangment isn’t the norm, it works well for some sets of people–children included.

But fundamentally I suppose we are heading back to the same point. I don’t think there is much of a natural state of affairs here. The social parent/child relationship is always shaped by culture and law is part of that. There’s an incredible diversity of family structures across time and culture. I don’t think there is a single right relationship (or generally right relationship) for the genetically related man, thus I don’t favor the one-size-fits-all, he’s always a legal parent solution.

Is health a total non issue to you? Is inbreeding totally a non issue to you? We must all know our relatives and they must know us starting from birth forward or we and they run certain unpleasant risks.

“I am aware that choosing the husband enourages sperm donation for married women and I agree that is problematic but I don’t think punishing the parent is a good enough reason to sacrifice the kids’ best interest.”

Ki how is naming the wrong man as father in the child’s best interests? He could just be the kid’s step father. Is that so bad? And it would respect the truth of the matter. Do you want the government only to record the truth when its in someone’s best interests? What would be wrong with requiring the doctor to turn over the records of donors do a paternity test and assign the actual father to support his child like all other men that take a paternity test an pass have to. Why should this child be given less than other children? This is not about punishing anyone its about equity and fairness and justice.

“The next door neighbor, however, is not anonymous and therefore there is no reason to deny his parenthood.” Why is there any reason to deny the anonymous donor’s parenthood? Why would we name anyone other than the father as the child’s father. Were you not just saying that fatherhood should not be optional?

If at the present time we don’t know who he is, except for the lone fact that he is not interested in having any involvement in the kids life, we have absolutely no other information about him, there is no best interest of the child that we can point to.

It is in the best interest of the person to have the facts accurately recorded and not have someone unrelated to him named as his father even if that line has to be kept blank. It’s the principal of not being made forced to live a lie Kisarita. Let some other man be a step father a guardian an adoptive father a custodian a foster father anything but a father because it is not true and forever ties the child’s identity to the wrong man. It is horribly disrespectful to force someone into a false identity. There are other ways to ensure that children are looked after without stealing their true identity. Naming anyone as a placeholder is one of the biggest problems. If the father should ever surface and ever be named, if they ever find their siblings and can prove beyond a shadow of a doubt who their father is by testing a sibling they just might be able to have their birth record ammended to include his name and then they’d have rights legal recognition of their other paternal relationships.

Paternity is a scientific term meaning male progenitor. Our error was to let false presumptions stand once the court became aware that its presumption was a mistake.

Now everyone thinks paternity has no basis in biological reality. I say firm up the scientific meaning of the word paternity and clarify that married couples are not allowed to claim maternity or paternity if the child is not their offspring because such claims interfere with the performance of obligations by the child’s biological parents. I know you think its a violation of privacy to test people, but nobody thinks it is a violation of privacy to test women immigrating with children born over seas for citizenship purposes or nobody thinks its a violation of privacy to test for paternity in paternity cases – its a matter of getting to the bottom of things.

I say we get rid of marital presumption and go to a voluntary declaration child you are claiming to be the parent of is your own offspring. It should say that it is a crime to falsly claim to be the parent of a child that is not your own offspring and that any parental authority granted by the state is contingent upon the child actually being thier offspring..

oh it’s essential all right. How does it make it a choice? Because of voluntary declaration? Its the only other reasonable alternative to mandatory DNA testing which is already mandatory if the state is trying to figure out who the father is. But the man with positive paternity is the father even if he is hiding I just want the law to say that so that nobody else can be named father in his absense. Guardian or stepdad yes but not father.

I just think this unnecessarily harms children. I’m thinking of children who have a perfectly well-functioning social father who isn’t genetically related to them. Denying the social/psychological father the title “father” in these cases–where there is no one else around to take on the title does nothing good at all. (As an aside, I don’t know whether you mean legal father or social father or both. It seems like both?)

I can see (and even sympathize with) your insistence that the child know (at some point) that there’s another person out there–the genetic father. But I cannot see why you would deny the man actually playing the role of father the rights/privileges that go with the role–and I include the title “father” in that set of rights/privileges. All this does (it seems to me) is mark the child/parent relationship as different and lesser.

I suppose you are comfortable making the non-genetically related father a second-class parent because you think he cannot possibly be a first-class parent because by definition he lacks the all important genetic relationship. So again we return to our central disagreement–the importance of that genetic relationship. I think he can be a fine parent without it and so should not be relegated to second-class status.

Julie you said “I suppose you are comfortable making the non-genetically related father a second-class parent because you think he cannot possibly be a first-class parent because by definition he lacks the all important genetic relationship”.

I want to change the law to prevent people from being turned into second class citizens, not to turn them into them. I don’t want to take anything away from anyone. I want to change the law to give people legal recognition of what is rightfully theirs. I want to give people everything they deserve.

You think your position is so child centered but it is not, you just are too close to your own opinion to see what your really saying. Let me break it down for you from an outsider’s point of view:

You said you don’t like what I described because it unnecessarily harms children…but you did not go on to explain any harm to the child you went on to explain harm to genetically unrelated father. If the genetically unrelated man were to be the child’s step father rather than his father, how exactly would the child be harmed? Would he not be financially obligated to support the child during the marriage which will surely last forever? Would he not be able to provide medical benefits for the child? Would the child not be able to collect social security death benefits as the stepfather’s legal dependent? Would the stepfather not be able to enroll the child in school or take the child to the doctor? Would the step father not be able to will an inheritance to the child or name the child as a beneficiary on a life insurance policy? Would the child not have any legal recognition of his relationship to his step family?

The answer to every one of those questions is No. I’ve spent two years making sure of the answers to those questions like social security death benefits and relative dependents on tax returns – Step families totally qualify for all those relative benefits. The step father can enroll the child in school or take the child to the doctor because he’s acting under the authority granted to him by the child’s mother. There is no reason for the step father to be granted the title of father other than his ego and the mother’s ego. Naming him as father takes away very important rights of the child because then the child’s genetic family will never be able to be legally recognized as his kin if he is ever lucky enough to find them or they are lucky enough to find him.

There is no harm to the child in being someone’s step child, there is no harm that would come to the step father from being a legal step father either. If they pretend to be father and child the law will regard them as father and child and there will be no room for legal recognition of the child’s genetic family should they ever make themselves known and then the child will be forced to live a lie with a false identity as a member of a family that he is not genetically related to but could have had all kinds of rights to as step family. Where there is still room for legal recognition of the step father and step family if the line for father is left blank or filled in with the one night stand guy – there is no room for the genetically related father or genetically related family if the step father becomes a legal father. Legally paternal family is lost forever for no good reason at all.

You Julie only think about the genetically unrelated parents supposed rights based on the effort they’ve put in. You never think about what the child should be entitled to. Or the upshot is that you think minors are entitled to a relationship with whomever has a relationship with them, regardless how they obtained that relationship. You don’t think the child is entitled to be supported physically or financially by any default person or people unless those people can prove they wanted to be in that position. Well what if nobody wants to be in that position? Doesn’t anyone owe it to the kid to physically and financially support them? Or are they just objects to be cared for by whomever buys them or earns them and thinks they deserve them?

If anyone here is comfortable turning people into second class citizens its u and the Build a Baby Workshop guy. I bet he’s got franchise opportunities, you could look into that.

I asked you some questions recently and I’d like you to get around to answering them. I’ll ask again here – Your theory, supported by current law, is that every child has a mother and she is the woman who gestated and delivered the child regardless of genetic relatedness. That gives every child just 1 legal parent. Just 1. Why should any child then get 2 legal parents? Why should the woman who gives birth be allowed to simply assign the title of parent to another person who has not gone through that effort of gestating and delivering? The child is not her property. Should she be allowed to cut deals in surrogacy agreements where she gestates and gives away her child as if the child were her property? Why do you find it acceptable for some children to have the right to rely upon more than their mother for support? I say for you to be absolutely true to your belief and fair to millions of children out there that there should be no second parents allowed for any child ever. That way all children have the right to rely upon the support of just the woman who gave birth and then her spouse if she had one would have a obligation to support her child only while married to her due to the joint income thing. And the thing your so worried about where parents have power and can prevent you from moving if you want ceases to be a problem.

I don’t think the two parent model is defend-able if you are not using biological parenthood as a default that every person has. I think if you go with pregnancy as the default that every person was gestated by a woman you can also wind up with an even starting point but then you don’t go adding additional parents to the mix assigning them parenthood because then you create imbalance.

Consistent with the idea that legal parenthood ought to reflect reality and the child’s relationships with pyschological parents, etc. I think the woman who gives birth should be a legal mother. She has an existing relationship with the child–not simply intention, but actual performance. So that is why I think children at least start with one rather than no legal parents.

The trickier part (for me) is adding parents. I do not think that the woman who gives birth gets to give shares. But I do think that it is often the plan and then in fact the practice that the child will have two functioning parents and the law should confirm and reinforce this rather than obstruct it. What makes this difficult for me is that no one beside the pregant person can have that much of a relationship with the child before the child is born.

I’m inclined to think that perhaps you can substitute the right sort of relationship with the pregnant person during the pregnancy. At the very least, this is the closest you can come, I think, and it is still based on actual performance rather than intention or contract or genetics. Perhaps we could say that if someone has the right sort of relationship during the pregnancy then on the birth of the child one is presumed to be a legal parent.

I understand the concern about single parents and the number of children being raised by single parents, but I think we need to think about that differently. The reality is that for many children they have only one functional parent. Current policies typically focus on forcing someone to step in to be the second parent, without any regard for who that might actually work. I’d must sooner see us say that we need to figure out how to make single parenthood work–what sorts of support we need to offer to make the reality of single parenthood fine for the kids who live with that.

a partnering relationship is not a parenting relationship, and indeed they break up all the time.
to equate the 2 is wrong because A. you severely weaken the concept of parenthood to a “choice” and B. you project adult realities onto the child. The child is a separate person and confusing the partner with the parent fails to acknowledge that.

btw i think you are using the word single parent incorrectly. A single parent is a parent whose marital status is single. It says nothing about the presence of the other parent in their children’s life. I know lots of single parents, single fathers and single mothers. Some are custodial parents (usually the women), some are not, but in most cases the non custodial parent remains involved in the kids life.
SOME single parents raise their kids entirely alone with no help from the other parent, but note that government doesn’t get involved unless they are asked to by the parent herself. its not like government is randomly pushing things.

I’m not sure about whether I’m using it incorrectly but your point is well-taken. It’s at best ambiguous. Maybe we need two separate terms–one to designate people who are raising a child solo (“sole parent” might be what they say in the UK but I’m not sure) and one to designate the situation where a parent is not married or partnered. I suppose this means that a child could have two single parents?

Of course some people raising children alone are also unmarried/unpartnered, so they are single parents in both sense of the word. But there are, as you say, unmarried parents who are in fact raising children with other people–coparents.

I’m not inclined to call the unmarried people raising children together with another “single parents” but perhaps that is how may people use the term. And maybe “sole parents” is better.

(The problem, I think, is that “single” has two different usages–“sole” does not. An unmarried person does not say “I’m sole” but might say “I’m single.”)

Let’s try it out. I will try to use “sole parent” to me a person who is actually raising a child as the only social/psychological parent of the child. I will try to use “single parent”–if at all–to mean a parent who is neither married nor partnered–a parent who is not part of a couple. In this usage, a sole parent may or may not be a single parent. And a single parent may or may not be a sole parent. (Where, for instance, friends raise a child together the a person might be a single parent (a parent who is neither married nor partnered) but she/he may not be a sole parent (because there is a coparent–the friend.)

I guess I’ll agree that a partnering relationship is not a parenting relationship, though I’m not sure what this means. But generally when one member of a romantic partnership decides to become a parent, the other member of the partnership also plans to be a parent. The idea, in other words, is that they will raise a child together, as partners and as co-parents. This means that generally they each establish a psychological parent/child relationship. They both bond with the child.

Of course it does not always work out–couples break up. And here, perhaps, is where I see the difference between the adult relationship and the parent/child relationship as being critical. I’m content to let the parents separate and move on. But children need stability and so those relationships–the parent/child ones–need to be protected. Parents ought not to break up with their children. This is why I think recognition of legal parenthood for both adults is generally best for the kids involved.

ah ah
‘I’m inclined to think that perhaps you can substitute the right sort of relationship with the pregnant person during the pregnancy.”
That is a relationship with the pregnant person not the fetus or the baby. Your still left with the delivering female doling out shares of parenthood. Parents really should not have that legal right because it objectifies their child.

what would you consider the right sort of relationship anyway? Must it be the mother’s sexual partner? If so, all you are doing is aping heterosexual, genetically based relationships only without the genetics.
A person who provides financial support? What if the mother lives with her parent? What if the mother’s sexual partner is unemployed and provides no financial support? A plan to raise the child together? that’s privileging intent over reality.

I don’t see it as you do. She’s not doling out shares–it is not just on her say so that one person becomes a parent and another does not. It’s true that the pregnant woman does get to control (at least I hope she does) who she is relying on during the pregnancy. By spending time with A and not spending time with B she might set A up to claim parentage while B cannot. In this sense, she does have power to determine who is in and who is out. But I don’t see this as doling out shares–I see this as deciding who she is spending her time with. That decision then has consequences.

Very good now address the fairness issue. Does every child get one default parent at birth in your utopia or not? Is every child entitled to 1 parent or 2 parents. If 2, why?

If you say pregnancy is the determining factor you get 1
If you say biology is the determining factor you get 2

If pregnancy is the determining factor you don’t get 2 unless the first is choosing the second and then isn’t that what step parenthood is for? When a parent that meets the default criteria for original responsibility wants to pair up with with a partner who does not meet the same parental criteria either pregnancy or biology) we have step parenthood because it is critical that their relationship with the child not outlast their relationship with the parent. It would be unfair to the child to be permanently connected to someone who did not meet that baseline requirement. If the parents relationship ends and everyone agrees that the relationship with the child can be maintained fine, but it should be the original parent’s perview or choice. The step parent is involved in the child’s life with the parent’s permission. Here is my test, if you needed permission or had to be invited, you’re not a parent and should not be legally regarded in that permanent position.

What to do about lesbian partners where 1 gives permission to the other to be pregnant with her embryo? This is very common in my town. If you told those mothers that biology did not count they’d be irked.

That is how two lesbian partners come close to replicating the biological process of reproduction; where one is carrying the other’s child, the way it is in heterosexual reproduction. Problem is that the woman carrying the child is a novelty. She was not necessary in order for the child to exist, the woman whose embryo it is could simply have gestated her embryo herself. She allowed the other woman to carry her fetus as a gesture of love and commitment to try and make her child the other woman’s child. The sperm donor and the woman who allowed the other to carry the pregnancy are the bio parents, they gave permission. Their child could have existed as the very same person no matter who gestated and delivered him/her.

I think I’m not as fixated on number of parents as a fairness issue. Of to the extent it is a fairness issue it is part of a parcel of them that I find quite perplexing.

Is it fair that one child is born to a happy and well-functioning couple while another child is born to an abusive and dysfuncational couple?

Is it fair that one child is born in a economically secure family (without regard to number of parents) in a comfortable US setting while another child is born to a poor refugee family (again without regard to the number of parents) in a refugee camp in Turkey?

I could of course go on. “Fair” just doesn’t seem the right term here, or if it is the right term, I’m not sure what it tells me.

I don’t think having two legal parents is necessarily better than having one legal parent. What I think is that the law ought to treat all children the same in that it ought to recognize and protect the critical social/psychological relationships around them. For some children that means recognizing one legal parent, for others two legal parents and for still others three legal parents.

And as I’ve just said in a different answer, it isn’t that the first parent is directly choosing the second parent. The first parent makes choices about how to live her life and that creates various networks of relationships from which flow various consequences. I do give her autonomy to make those sorts of choices–including the choice to raise a child all by herself. I’d like to give everyone the same sort of autonomy about who they spend their days with, actually. It’s just when you do that and you have kids, I think we (as a society) need to think about the kids. Thus, if you are a parent and you spend all your time with another adult and the other adult comes to play a parental role in the life of your child, that other person ought to have rights as a consequence of the circumstances–even if you change your mind and don’t want them too. This is why I think the “doling out rights” model isn’t right.

“(I sometimes wonder if conservatives regret not having put up more of a fight about parenthood issues.)”

I must confess that I’m confused by this statement. In many states, same sex couples are unable to adopt jointly. FL only began allowing LGBT folks to adopt about two years ago – and only because of a court ruling, not because of a legislative change. Arkansas voters passed an amendment banning adoption by gay people and that amendment was only overturned after a court battle. I’d say conservatives have been fighting parenthood issues and continue to do so today.

All that you say is true but I think overall, the conservatives missed the boat. The Florida law was very early–Anita Bryant era–but most of the efforts came much later. The vast majority of states never barred single lesbians and gay men from adoption. And “single” just mean “not married” so one member of a lesbian or gay couple could adopt in most places.

In a similar way, fairly ready access to ART (and particularly third-party sperm) made it possible for one member of a lesbian couple to become pregnant/give birth–which clearly made her a legal parent.

Now it both cases the second member of the couple didn’t have legal status and this did create all sorts of problems. I’m not saying it was easy for lesbian and gay people. But in fact, there were lots of households that (in fact if not in law) had two same-sex parents. There was an organized effort to restrict adoption after all the marriage amendments passed–but by then I think it was too late. There were already too many lesbian and gay families and that movement never really took hold.

I wonder if one reason they didn’t fight the parenting issue harder is because initially gay parents were adopting very difficult to place foster kids (sibling groups, mixed race kids, kids with disabilities, older children, etc.). So, they allowed the adoptions because gay people were essentially taking the kids that nobody wanted. (I don’t like that wording – “kids that nobody wanted” – but I’m in a hurry and couldn’t think of a better way to phrase it. All kids are a blessing but the reality is that many parents want to adopt a healthy infant so I’m trying to draw a contrast with that situation, but couldn’t quickly find the right or best words.)

I think you are likely right. In addition, what was happening was invisible. If you were inside the lgbt community you might know about it, but there were no big cases to alert anyone that it was happening.

More visible were lesbians who had children from relationships with men and who were struggling around custody issues. Some of those were quite high-profile. But those were different. No one asserted those women weren’t legal parents–just that they weren’t fit parents.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.